R v Jones
[2012] NZHC 3147
•23 November 2012
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2012-009-238 [2012] NZHC 3147
THE QUEEN
v
TERRY JONES
RICHIE STUART CLUTTERBUCK LEON DELSHANNON TURNER
Counsel: K B Bell and C D Newman for Crown
J Rapley for Jones
P J Norcross for TurnerR S Clutterbuck in person (with B R Green as amicus) Sentence: 23 November 2012
SENTENCING NOTES OF DOBSON J
[1] I have to sentence each of you on one conviction for blackmail. You were all found guilty by a jury at the end of a trial in this Court in early October 2012. I deferred entering a conviction in your case, Mr Jones, and I now do so.
[2] I am to sentence each of you on the view I take of the evidence at the trial, bearing in mind that my view has to be consistent with the verdicts of the jury.
[3] That means it is appropriate for your counsel, and in your case
Mr Clutterbuck for you, to urge on me a view of all the evidence we heard that is most favourable to you, in minimising your criminal conduct. However, that does
R v JONES HC CHCH CRI-2012-009-238 [23 November 2012]
not mean you can re-write history and ask to be assessed for sentencing on a version of the events that is inconsistent with the evidence we heard and the jury’s verdict.
[4] Having reviewed all of the evidence, I am amply satisfied that the summary I am about to give is reflected in the evidence, and is consistent with the jury’s verdicts.
Mr Jones
[5] You had previously obtained permission from the complainant, Mr Pascoe, to bury a sum of cash on his rural property outside Nelson. He did not know precisely how much, but it was most likely in a range between $30,000 and $50,000. I infer Mr Pascoe was aware that the money was from illegitimate sources, despite the initial explanation he said that you gave him that it represented the proceeds of the sale of a bus. On occasions after the box was initially buried, amounts were added and removed. Although you may have intended that the location of the hidden money was to be a closely guarded secret between you and Mr Pascoe, at least within a period of your being remanded in custody on other matters, others became aware of its whereabouts. When Mr Pascoe was pressed to dig up the money and deliver it to someone else, he reported to your partner in Nelson, and then to you, that the money had gone.
[6] I am satisfied from Mr Pascoe’s responses at the time, and from his evidence at the trial, that he genuinely thought that the amount was substantially less than the amount of $72,000 that you referred to in one of your communications to him. In other words, you were demanding more than the cash that had been in the can as an informal “tax” or interest charge for the trouble in getting the money back.
[7] A diverting issue at trial was where the money had gone, but that is irrelevant for present purposes. After attempting to pressure Mr Pascoe to account for the money from prison, you arranged for Mr Clutterbuck, who was at the time in Christchurch Men’s Prison with you but was shortly to be released, to contact Mr Pascoe and to threaten him in circumstances that would amount to blackmail in
order to extract a promise that Mr Pascoe would account for the lost money and more.
[8] You may not have known the detail of when and how Mr Clutterbuck would pressure Mr Pascoe. I am satisfied that you anticipated it would involve frightening threats of violence and the prospect of actual violence. That is reflected in your concerns that your partner should be very wary of dealings with Mr Clutterbuck and your comment to her that he was a very horrible man. In short, your description of your request for Mr Clutterbuck to have “a stern word” with Mr Pascoe meant considerably more than just a stern word.
[9] When it appeared Mr Clutterbuck had been successful in pressuring Mr Pascoe to lodge a caveat over the property in Mrs Pascoe’s name to provide a source for repayment to you when that property was sold, you were pleased with Mr Clutterbuck’s work, and cannot have been under any illusions as to how it had been achieved, given your own inability to get any commitment from Mr Pascoe despite the strongest urging that you could muster.
[10] So, Mr Jones, you were the instigator – the promoter of the blackmail. You cannot distance yourself or lessen your part in it by claiming you did not know precisely what Mr Clutterbuck would do.
Mr Clutterbuck
[11] The jury’s finding, and the view I take of all the evidence, does not allow me to treat your involvement as a non-threatening request relayed on behalf of a friend in which you pointed out how lucky Mr Pascoe was not to be dealing with others who you hinted had an interest in the missing money.
[12] Rather, this was a criminal enterprise that you undertook for gain for yourself. Your texts to Mr Turner earlier in the day of the meeting with Mr Pascoe refer to the activity having what I take to be a substantial amount of money in it for both of you, and the amounts demanded of up to $140,000, settling at $100,000, were larger than the amounts Mr Jones had been looking to be repaid.
[13] I accept that you did not raise your voice during the meeting. I accept also that the terms in which the threat was made were indirect. But those points do not deprive your conduct of seriously threatening character. I am satisfied that your demeanour conveyed a serious threat, and the intimidating circumstances were enhanced by the presence of Mr Turner. You chose him as your driver and companion in the venture. Mr Pascoe was seriously and justifiably afraid for the safety of his family, and for his own safety.
[14] After the day of the meeting, you pursued Mr Pascoe by text communications. I acknowledge in some cases he initiated those communications, but you were in further dialogue with him – pressing him to confirm his commitment about lodging a caveat against the property. Mr Pascoe was prepared to take the steps to have that happen, against his own interests, and the proposal was thwarted when the lawyer he consulted refused to act on his instructions.
[15] Despite your urgings that your involvement should be seen as lawful, consistently with a later comment that you made when telephoned by Mr Pascoe that the matter should be sorted out with the help of lawyers, and despite also your conduct over the period to which the charge relates not showing any great sophistication as a scheme of blackmail, I am more than satisfied that the jury’s verdict was justified and that all the elements of blackmail, which is a nasty and insidious crime, were made out against you.
Mr Turner
[16] Your involvement was limited to the day of the meeting with Mr Pascoe. You and Mr Clutterbuck had been at least acquaintances, if not friends, for a period of time, and one of the letters that you have submitted from the Loan Shop confirms the two of you were employed together there as repossession agents. However, you had no previous knowledge of either Mr Jones or Mr Pascoe.
[17] The requests from Mr Clutterbuck that you drive for him included a reference to there being the prospect of substantial money in the enterprise for both of you, and before the meeting began there must have been some arrangement between you and
Mr Clutterbuck that you would use assumed names. Now Mr Clutterbuck has suggested that that was his initiative and it was because he was, in fact, scared of Mr Pascoe in what he sensed were gang connotations that came along with Mr Pascoe. I can’t accept that and I consider that not using your real names made it more difficult for those you confronted to trace who they had been dealing with and that was an unnecessary precaution if your activity was indeed legal.
[18] I accept that you had relatively little personal engagement with Mr Pascoe. Mr Norcross suggested during the trial that your contributions to the meeting were “smart little comments”, but in the context of Mr Clutterbuck putting the frighteners on Mr Pascoe, they cannot be dismissed so lightly. Mr Pascoe got the impression from your contributions that you had “come south” to Christchurch, and you independently demanded a tax of some sort for your trouble in doing so. In support of your demand for a vehicle, you made a telephone call in Mr Pascoe’s presence that left him with the impression you were booking space for a vehicle on a ferry to the North Island. Certainly, you did not persist with those demands after Mr Pascoe protested that the vehicle in question had no real value, but those contributions did, at the very least, add to the seriousness of the threats Mr Pascoe sensed he was facing from Mr Clutterbuck.
Impact on victims
[19] As to the impact of the offending, the victim impact statements from Mr Pascoe and his wife reveal that there has been on-going and substantial upheaval to their lives caused by these events. I accept that a large part of that disruption is caused by the money having gone missing from their property as distinct from the threats involved in your blackmailing Mr Pascoe. But the focus for the victims is understandably on the threat made against their personal safety, and the way in which that occurred.
[20] I also accept that Mr Pascoe was not a particularly vulnerable victim, but nor could he go anywhere near matching how heavy the presence of Messrs Clutterbuck and Turner would have been in the rough and tumble of conduct where people were taking the law into their own hands and threatening physical violence.
[21] In sentencing you, I have to have regard to the purposes of sentencing in s 7 of the Sentencing Act 2002. Implicit in my analysis is recognition of the need to hold you accountable for the harm you have done, both to the victim and to the community, to denounce blackmail and to deter you and to deter others from similar offending.
[22] I have also been mindful of the principles in s 8 of the Sentencing Act in reflecting on the relative gravity of your offending, and the seriousness of blackmail as a category of offence. I will endeavour to provide consistency with sentencings in other cases of blackmail that are more or less comparable with this case.
[23] All counsel have referred to the 2005 decision in R v Takao, which provided a list of factors to be checked against the facts in a blackmail case in ascertaining relatively how serious it is in determining the length of sentence.[1] It is useful to assess the seriousness of this case by considering those factors.
[1] R v Takao HC Rotorua CRI-2004-087-2277, 29 April 2005, recently endorsed in R v Rewi [2012] NZHC 1410.
[24] First, the relationship, if any, between the blackmailer and the victim. Mr Jones, you set this crime in motion, even although you had previously treated Mr Pascoe as a long-standing friend. The comments you made to him and about him to your partner in the period before his meeting with Messrs Clutterbuck and Turner suggests you treated the friendship as severely strained, if not at an end.
[25] On this criterion I acknowledge Messrs Clutterbuck and Turner had no previous connection with Mr Pascoe.
[26] Second, the nature of the threat. It was reasonably treated by the victim as a realistic threat of serious harm to himself and to members of his family. It is to be ranked somewhat less seriously than it would otherwise, because the threat was made indirectly. On the other hand, Mr Pascoe’s description of your demeanour as
so menacing that he was afraid for his life was entirely credible, and borne out to a
degree by Mr Clutterbuck’s demeanour in Court. The raw and most frightening edge to the veiled threats were references to Mr Pascoe’s family.
[27] Third, the sum demanded. From an amount Mr Pascoe perceived to be probably less than $50,000, Mr Jones had demanded repayment of $72,000 and Mr Clutterbuck used amounts of $100,000 to $140,000. Now those are very serious amounts of money.
[28] Fourth, the persistence of the demand. The charge focuses on a single meeting when the threat was delivered. Mr Turner had no further involvement. Mr Clutterbuck, you were involved in follow-up contact to check out performance of the promise extracted in response to the threats that were made.
[29] Fifth, whether the demand was successful. Well, Mr Pascoe was motivated to arrange for a caveat but his compliance with the demands was frustrated by the lawyer refusing to act on the instructions. In that sense, the demand was in part successful, but ultimately not so.
[30] Sixth, the vulnerability of the victim. As I have commented, that was, in relative terms, not high.
[31] Seventh, the effect on the victim of the demand. That has been significant, although the impact of your criminal conduct cannot be entirely divorced from the wider circumstances of the disappearance of the money as a factor in the subsequent disruption to the lives of the victims.
[32] Overall, these factors and the relative lack of sophistication in the manner in which the blackmail was effected mean that it is not among the most serious types of blackmail that can occur. At the same time, it has serious features given the seriousness of the threat and the amount of money demanded. I therefore treat it as being somewhat below the mid-point in a continuum of cases from the least to most serious circumstances in which blackmail is established.
[33] Now as you have heard, the maximum starting point for blackmail is
14 years’ imprisonment. Given the seriousness of the offending, any form of punishment less than imprisonment would, I am satisfied, be inadequate in each case.
[34] I need to identify the appropriate starting point for the sentence for a blackmail conviction of this relative seriousness. There are three cases that I had considered before coming to Court this morning that were helpfully comparable. The first is the sentencing in R v Wilkie.[2] The defendant there visited the victim and complained about the quality of building work that the victim had done for the defendant. The defendant claimed the victim owed him $25,000 for defective work
and stated that if the victim did not pay the money, he would kill him. That threat was repeated a number of times during a meeting between them, and the defendant also threatened the victim’s family. The convictions there were for one count of blackmail and one separate count of threatening to kill. The High Court set a starting point of three years’ imprisonment as the appropriate level. Of interest is that the Court disregarded a genuine belief that the defendant claimed that he was entitled to be paid the money as having relevance in assessing the seriousness of the blackmail.
[2] R v Wilkie HC Wellington CRI-2004-078-506, 17 December 2004.
[35] Next, in a case earlier this year in R v Rewi, the defendant went to the business premises of someone who was a stranger to him but whose store was competing with a business of an associate of the defendant.[3] The defendant claimed that he “ran the area” and demanded $1,500 from the victim if he wanted to stay in business in the area. The defendant threatened that if he did not pay, he would smash the victim’s property and that threat was followed by a text message saying “either
pay up or you and your family will have [effectively] violence inflicted on you”.
The threats persisted until the victim and his family left the area. Again, a starting
point of three years’ imprisonment was adopted.
[3] R v Rewi [2012] NZHC 1410.
[36] A third sentencing, also earlier this year, was in R v Thompson.[4] There, the defendant went to the victim’s house and accused him of having assaulted a relation of the defendant, demanding $700 or he would break the victim’s arms and legs. The victim met that demand but the defendant escalated with further threats, demanding on later occasions $6,000 and then $10,000. In that case, a starting point of two years and nine months’ imprisonment was adopted.
[4] R v Thompson [2012] NZHC 798.
[37] A less serious case than the present is that of R v McCarthy.[5] There, the victim had been building a large catamaran in a warehouse that was leased from the defendant. After the victim terminated the tenancy, issues arose in removing the catamaran as exterior panels of the warehouse had to be removed to get the vessel out. The defendant demanded $20,000 as a bond against the risk of damage to the building, and threatened to take a chainsaw to the catamaran if the money was not paid. The sentencing Judge there described it as “mid range” blackmail in terms of its seriousness, and set a starting point of 18 months’ imprisonment. To the extent that I have fixed this case around the mid-point of relative seriousness of blackmail cases, it is materially more serious than McCarthy where threats were of damage to property and not threats of physical harm to the defendant.
[5] R v McCarthy HC Rotorua CRI-2006-087-2206, 28 November 2007.
[38] I have also disregarded more serious cases, where there were elements of actual violence, or other aggravating factors.
[39] Now this morning, Mr Clutterbuck has raised in part of his argument on his behalf another blackmail sentencing in this Court earlier this year in the case of R v Parish.[6] There a starting point of two years for blackmail and other serious offending was adopted. From reading the case and Mr Clutterbuck’s summary of it, the circumstances were different. There was not a demand for any significant amount of money and the threats occurred in the on-going course of a domestic
relationship. I have nonetheless taken it into account as another comparator, and consider that full participation in the offending here warrants a starting point of two
years and nine months.
[6] R v Parish [2012] NZHC 495.
[40] In settling on that, I have to acknowledge the arguments Mr Norcross has made for Mr Turner that his participation should be seen as demanding with menaces, rather than blackmail. I do not accept that the basis for distinguishing the elements of blackmail from those in demanding with menaces does apply here. Mr Norcross referred to the analysis in R v Winn where the immediacy of the threat
was treated as relevant.[7] This case is appropriately one of blackmail, although the
analysis of Mr Turner’s participation advanced on his behalf is relevant to adjusting the appropriate sentence for him, relative to the starting point for the offending overall.
[7] R v Winn HC Auckland CRI-2009-090-12003, 13 September 2010.
[41] Turning next then to the relative contribution made by each of you to the overall offending, I note that Mr Clutterbuck was convicted as a principal, and Messrs Jones and Turner as parties. However, as was apparent at the trial, the law stipulates that an offender convicted as a party to offending is liable - and therefore vulnerable to be sentenced on - the same basis as someone who was the principal. But that does not prevent the Court making individual assessments of your culpability producing different outcomes, and I evaluate the contributions each of you made to the offending in that light.
[42] Mr Jones, you were the initiator and nothing would have occurred without your request to Mr Clutterbuck. Nonetheless, the role you played was a little less significant than that of Mr Clutterbuck and I fix the starting point in your case at two years and six months’ imprisonment.
[43] Mr Clutterbuck, you were the principal offender. It was your conduct, and in particular the manner in which you delivered the threats, and insisted on Mr Pascoe acting contrary to his interests to provide money, that is the essence of the seriousness of the blackmail here. Accordingly, two years and nine months is the appropriate starting point in your case.
[44] Mr Turner, although I cannot sentence you as if convicted for the different offending of demanding with menaces, yours was the smallest of the three
contributions to the offending overall, and I fix a starting point in your case of two years and three months.
[45] From this point, I will consider the aggravating and mitigating factors that are personal to each of you, leading to an end sentence. I will impose the end sentence and have each of you taken down as I deliver the sentence for you.
Mr Jones
[46] Mr Jones, you have previously been imprisoned for a range of convictions involving drugs, violence, unlawful possession of a pistol and breach of other Court orders. However, according to the record I have, the last offending you were sentenced for occurred in November 1998, some 14 years ago. There is a prospect that your part in this blackmail occurred whilst you were on remand for other charges, but because the future of those charges is uncertain to say the least, I do not treat that as an aggravating factor. Nor is your list of previous convictions in the view I have come to, given their age.
[47] In terms of mitigating factors, I have considered the relatively positive pre-sentence report prepared about you. You are assessed as being of medium risk of re-offending and low risk of harm to the public. I have had regard to the references Mr Rapley made this morning to your achievements in prison and I also record the assurance he passes on, on your behalf, that the victim need feel no fear from you. However, in the way I have assessed your culpability, none of these personal aspects amount to mitigating factors that can justify making an adjustment to your sentence.
[48] Your counsel has submitted that the appropriate sentence would be between two and two and a half years. Mr Rapley used somewhat different components in his analysis, but after careful consideration, I find his analysis affords you a measure of credit in some regards that I cannot give to take it down to the lower of that end.
[49] I accordingly sentence you to imprisonment for a term of two years and six months, and you are to stand down.
Mr Clutterbuck
[50] Mr Clutterbuck, you have shown your attitude to the offending in numerous interventions during the trial, and in what you have said to me this morning. You do not accept in essence that you committed blackmail, you think you were set up, and you put all the blame for your present predicament on others.
[51] Your criminal history shows, by my count, slightly more or less than 350 convictions since 1978, with a sadly repetitive pattern of violent offending, the most serious being a conviction for manslaughter, for which you were sentenced to five years’ imprisonment in 1986, fraud and dishonesty, firearms and driving, as well as perverting the course of justice and breaches of sentences and Court orders.
[52] It could be said that the rate of offending appears to have slowed, and that the relative seriousness of your offending has got less over the last decade or so. Certainly, letters written by your current partner and a friend urge that you are attempting to chart a new course for your life, and that you are keen to take steps that will not lead you into re-offending.
[53] Mr Clutterbuck, a conviction involving threats of violence such as the present is likely to be treated as aggravated by so appalling a criminal record as yours, so that the sentence would be increased by a period of between three and six months. Having considered all of the circumstances of your offending and the prospects for rehabilitation, by the narrowest of margins I have decided against any addition to the length of sentence I must impose to take account of your previous record as an aggravating factor in your offending. That is as much as I can do to encourage your rehabilitation.
[54] You, in your submissions to me this morning, have asked for a sentence of
18 months. It is legitimate for you to ask, but that would clearly be inadequate as a deterrent signal for the seriousness of your component of this offending.
[55] In terms of mitigating factors in your favour, having recognised the somewhat unusual position where you are keen to rehabilitate yourself but show
what I treat as no remorse, I am unable to give credit for any mitigating circumstances. Accordingly, the sentence I impose on you is one of two years and nine months’ imprisonment. I note from the pre-sentence report that its writer considers you would be an appropriate candidate for the medium intensity rehabilitative programme whilst in prison. I encourage that that should occur, but I am not in a position to impose it as a condition of your sentence. Stand down.
Mr Turner
[56] Turning to you Mr Turner, your list of previous convictions is about half the length of Mr Clutterbuck’s, and still sufficiently serious to be of real concern. You have convictions from 1995 for kidnapping and aggravated robbery, for which you were sentenced to two years and six months’ imprisonment, and there is a pattern of violent, dishonesty, firearms and class C drug offences. As with Mr Clutterbuck, it does appear that the offending is becoming less frequent, and less serious, as you get a little older. As with Mr Clutterbuck, the extent of your criminal record could readily be treated as an aggravating factor that would add to the length of prison sentence imposed. In your case, I am not satisfied that it would be appropriate to do so. In a sense you were drawn in to offending that is appropriately characterised as more serious than you may have thought you were participating in, and it is not argued for the Crown that it represents repeat offending of a similar type to matters for which you have been convicted in the past.
[57] I have read the letter you have written to me containing an apology to the victim and an expression of remorse. I have also considered the letter from the Corrections Officer confirming your good behaviour and encouraging attitude whilst on remand, and in addition, I have read the five further letters from your family and friends that were delivered to me this morning.
[58] In addition, I have considered the pre-sentence report and the details it provides of your domestic situation. You are to be encouraged in your attempts to be a good father and partner and a good member of society. In combination, those matters reflect more positively on your rehabilitation than is available to the two co-offenders. They do warrant a reduction in what is otherwise the appropriate
sentence, by two months, or perhaps a little more, which I hope will encourage you to maintain the attitude that you have indicated.
[59] Mr Norcross has argued that you should be given credit for a period in excess of six months spent on 24 hour curfew on e-bail. Any such credit is discretionary, and I have regard to the alternative, which would have been a remand in custody for that period, which, from your perspective, would no doubt have been substantially worse. You did breach the terms of bail and ended up remanded in custody. In your case, I am prepared to give credit of most of a month, so that, added to the other discount, I will deduct a total of three months.
[60] I am mindful that Mr Norcross has argued for a much lower starting point of
12 months on the basis that you should be sentenced as if for demanding with menaces. As the trial played out, that would not be appropriate, so you are to be sentenced from a starting point reflecting your part in the blackmail. My other considerations do reflect the rest of Mr Norcross’s arguments.
[61] In your case, you are sentenced to two years’ imprisonment. That is a sentence which brings you within the length of sentence in which I could consider home detention, but because of the nature of the blackmail conviction I do not consider that as a viable alternative.
[62] As with Mr Clutterbuck, the pre-sentence report writer raises the prospect of the medium risk rehabilitation programme being appropriate for you, and I can only urge that that opportunity be given to you and actively pursued. Stand down.
Dobson J
Solicitors:
Crown Solicitor, Christchurch
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